Rationality wins US greenhouse gas case

by Tom Bennion on July 1, 2012

Tom Bennion, a Wellington environment lawyer who has not flown since 2009, takes a look at the recent Environmental Protection Agency versus the “Coalition for Responsible Regulation” case in the USA.

Opponents of regulation of greenhouse gases in the US, including a number of states, have just received a spanking in the DC Court of Appeals, a level just below the Supreme Court. The court has thrown out a variety of challenges to EPA rules regulating greenhouse gases. I will briefly explain the ruling (pdf here) and then comment on prospects from here.

The background is that in 2007 the Bush era EPA argued that it could not regulate greenhouse gases as pollutants under the Clean Air Act. In Massachusetts v. EPA the Supreme Court determined that it could.

Subsequently, the Obama era EPA has made an “Endangerment Finding” that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” Then it issued a “Tailpipe Rule” setting emissions standards for cars and light trucks which would save around 960 million metric tons of CO2e emissions. It also issued “Timing and Tailoring Rules” requiring only the largest stationary sources such as new power stations to meet emissions standards, on the basis that regulating every small polluter would be overly onerous.

Various states (drought afflicted Texas and thawing Alaska among them) and industry groups attacked both the Endangerment Finding and the rules on the basis that the Endangerment Finding and Tailpipe rules were “arbitrary and capricious” exercises of discretion by the EPA resulting from factual and procedural errors, and a misreading of the Clean Air Act.

The three member appeal court threw out all of the challenges.

A major complaint of opponents was that the Endangerment Finding by the EPA restricted itself to “a science-based judgment devoid of considerations of policy concerns and regulatory consequences.” In other words, the EPA should have let difficulties of regulating greenhouse gases influence its finding that current levels have become dangerous. The court said this was just going over old ground from Massachusetts v. EPA where the Bush era EPA had argued it greenhouse gases couldn’t be pollutants under the Clean Air Act because it would be too hard to regulate them. In that case the Supreme Court found that “policy judgments . . . have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment.”

In response to an argument that the EPA had improperly relied on findings by other scientific agencies, including the Intergovernmental Panel on Climate Change (IPCC), the U.S. Global Climate Research Program (USGCRP), and the National Research Council (NRC), the court was scathing:

“This argument is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, any decision-making to any of those entities. EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”

Throwing out a challenge that the scientific evidence “does not adequately support the Endangerment Finding” the court said:

“The body of scientific evidence marshaled by EPA in support of the Endangerment Finding is substantial. ….EPA had before it substantial record evidence that anthropogenic emissions of greenhouse gases “very likely” caused warming of the climate over the last several decades. EPA further had evidence of current and future effects of this warming on public health and welfare. Relying again upon substantial scientific evidence, EPA determined that anthropogenically induced climate change threatens both public health and public welfare. It found that extreme weather events, changes in air quality, increases in food- and water-borne pathogens, and increases in temperatures are likely to have adverse health effects. … The record also supports EPA’s conclusion that climate change endangers human welfare by creating risk to food production and agriculture, forestry, energy, infrastructure, ecosystems, and wildlife. Substantial evidence further supported EPA’s conclusion that the warming resulting from the greenhouse gas emissions could be expected to create risks to water resources and in general to coastal areas as a result of expected increase in sea level. Id. at 66,498. Finally, EPA determined from substantial evidence that motor-vehicle emissions of greenhouse gases contribute to climate change and thus to the endangerment of public health and welfare.”

The court also threw out arguments that errors in IPCC reports over glaciers and controversial University of East Anglia’s Climate Research Unit emails made the Endangerment Finding unsafe.

Overall, the important point is that the Court did not decide whether climate change is happening or not. It was asked to determine if the EPA was acting reasonably and rationally after carefully assessing the available evidence, even with “significant uncertainties” in some parts of the science. As the court put it:

“In Massachusetts v. EPA the Supreme Court confirmed that EPA may make an endangerment finding despite lingering scientific uncertainty. Indeed, the Court held that the existence of “some residual uncertainty” did not excuse EPA’s decision to decline to regulate greenhouse gases. To avoid regulating emissions of greenhouse gases, EPA would need to show “scientific uncertainty . . . so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming.” Clearly, then, EPA may issue an endangerment finding even while the scientific record still contains at least “some residual uncertainty.” Industry Petitioners have shown no more than that.
In the end, Petitioners are asking us to re-weigh the scientific evidence before EPA and reach our own conclusion. This is not our role. As with other reviews of administrative proceedings, we do not determine the convincing force of evidence, nor the conclusion it should support, but only whether the conclusion reached by EPA is supported by substantial evidence when considered on the record as a whole.”

These issues may yet go to the Supreme Court, but on the basis of this ruling you would not fancy the chances of opponents in their attacks on the Endangerment Finding.As to the attacks on the regulations themselves, the outcome of any appeal to the Supreme Court is harder to call, particularly as some challenges to the regulations were dismissed on technical grounds concerning standing to sue, and other such matters.

Overall, you can read the court decision as saying this: the rational people and processes which have enabled us to put satellites into space, people on the moon, develop cars, skyscrapers, mobile phones, computers and the internet, are applying the same standards when they assess the threat of climate change.

{ 9 comments… read them below or add one }

bill July 1, 2012 at 1:53 pm

Hear hear! Thanks Tom.

Indeed, the Court held that the existence of “some residual uncertainty” did not excuse EPA’s decision to decline to regulate greenhouse gases… we do not determine the convincing force of evidence, nor the conclusion it should support, but only whether the conclusion reached by EPA is supported by substantial evidence when considered on the record as a whole.

As you say, by all it’s possible for humans to know – and the world around us demonstrates that we have learned many things, even if much remains elusive – the EPA was obliged to act as it did. And it is not the role of the courts to contest scientific fact, they may only verify – and have – that the preponderance of evidence generated by the appropriate authorities is what has been weighed – it has!

( Other parties attempting to take actual Science to court may wish to take note. ;-) )

Australis July 2, 2012 at 1:42 pm

We laud the engineering work by those who “put satellites into space, people on the moon, develop cars, skyscrapers, mobile phones, computers and the internet” – because they all actually work. They were developed during years of trial and error, but finally everything came together and worked to perfection.

Post-normal science predicting future threats is the opposite of all that. So far, all predictions have been seriously wrong, and there is no indication that accuracy is improving.

Gareth July 2, 2012 at 1:56 pm

There’s nothing “post normal” about the radiative behaviour of CO2, or its accumulation in the atmosphere. Nor is there in paleoclimate observations of high sea level associated with atmospheric CO2 levels lower than today.

We have every reason to expect bad things to happen. Try to pretend otherwise is post-something-or-other. Post common sense, perhaps?

bill July 2, 2012 at 3:12 pm

As far as I can discern, ‘post-normal science’ is a rhetorical trope, divorced from meaningful content.

This ‘aha [there's always 'aha!'], this isn’t science, this is post-norrmal science’ argument is, indeed, ‘little more than a sematic trick’.

In common with about 95% of Denial. I often have to pinch myself to confirm that we really are stuck with having to deal with such galactically pointless arguments.

PS – CT, day 2: so far so good; as yet, Australian Economy has not collapsed. Doubtlessly any local impact of the pending Global double-dip recession/Depression will be caused by it, particularly if the Media really does become the Gina and Rupert Show…

PPS – sign the petition to support Phil Jones in the face of revealed abuse over at SkS

andyS July 2, 2012 at 7:12 pm

Post Normal Science was a term defined by Silvio Funtowicz and Jerome Ravetz to define a scientific methodology used when “facts are uncertain, values in dispute, stakes high and decisions urgent”, (as opposed to “Normal Science” proposed by Thomas Kuhn, or the classical scientific philosophy of Karl Popper)

Prof Mike Hulme of the University of East Anglia is a leading proponent of PNS.

Gareth July 2, 2012 at 7:18 pm

It’s a fatuous distinction. Mike Hulme should know better.

bill July 2, 2012 at 11:54 pm

And I can’t discern any content in his ramblings on the topic, either.

Thomas July 2, 2012 at 11:09 pm

So far, all predictions have been seriously wrong, and there is no indication that accuracy is improving.

You probably mean to say that the predictions of the IPCC have indeed been to conservative and actually on the low side of the speed of things developing.

As you know, the CO2 emissions are increasing at the high edge of the predicted range, and the effects of melting in the Arctic are ahead of predictions. Further the IPCC (knowingly so and by their own admission) were predicting lower than actual sea level rise figures as they only looked at the thermal ocean water expansion and left the (obviously fast increasing) arctic glacier melt out of the equations.

So yes Australis, predictions made by scientists under the spotlight of the international arena are a pelorious matter for the scientists, especially if your best scientific judgement is held back by political considerations and if part of our audience (some of those who sign the checks for your work) are already convinced, based on nothing else than their political affiliations or dependencies on the Trillion dollar fossil fuel industry, on what the outcome of your deliberations ought to be, and threaten you, if you step out of line and say it as you see it, with dragging you through the legal ringer ala McCarthy….

Yep, science, where scientists are handing us messages we find inconvenient to consider instead of delivering more of the magic of our technological empowerment, is might be called post-normal if you wish. But that depends entirely on what you call ‘normal’. The exuberance of our stellar technological ascent of the last 100 years was anything BUT normal and as with all exuberant times, the bill was coming all along.

Shooting messengers has never been a tactic that gave long term relief to the clan of the king, and ranting and raving is not going to impress the laws of nature…..

Tom Bennion July 2, 2012 at 6:27 pm


Your comment about post-normal science caused me to go and look up definitions and discussions of it. It is not, as you seem to use the term, that some parts of science predicting future threats have become political and not really ‘proper’ science.

It is actually a complaint by a small group of scientists that their colleagues are not reflective enough about the non-empirical influences on their work: http://en.wikipedia.org/wiki/Post-normal_science

The argument of the (very few) post-normal science advocates is that the vast majority of scientists keep sticking to boring old facts and empirical measurements and predictions based on them as if they were truth. James Hansen would be a prime candidate. He thinks the emissions numbers are all you need to know to understand the truth of our current situation. My own experience is that climate scientists are boringly obsessed with facts and numbers.

Which means, of course, that I agree with your statement that, ‘post-normal’ science is a very tricky approach to predicting future threats. Thank God climate scientists have nothing to do with it.

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